County approval for Chico home overturned on buffer requirement

Hearing examiner cites stream buffer, DCD to review language

PORT ORCHARD — Kitsap County planners will change their procedures for approving buffer reductions for waterfront homes, after one of their approvals was overturned by the county hearing examiner.

The case involves a property on Chico Way where the owner wants to build a single-family home near a small stream that flows into Dyes Inlet. Because the stream runs through the middle of the property, building any kind of house would be difficult without a buffer reduction, according to findings by the Kitsap County Department of Community Development.

An existing small house on the west end of the property, at 6344 Chico Way, was to be retained as an accessory dwelling unit.

To accommodate the new house, planners allowed a 50-percent reduction in the 50-foot stream buffer and a 25-percent reduction in the 75-foot shoreline buffer. But they made no mention of a required 15-foot construction setback that provides extra space around structures.

In plans approved by the department, that setback was eliminated entirely, showing construction of a parking platform and retaining wall at the edge of the stream buffer.

That was just one of several problems with the approval, according to findings by Kitsap County Hearing Examiner Kimberly Allen, who upheld the appeal by a neighbor.

In her findings, Allen recalled the testimony of county planner Steve Heacock: “Mr. Heacock testified that the authority to eliminate a construction setback is not written down, but that he has done so in dozens of cases.” But the county rules are clear, she said. The 15-foot setback must be added onto the stream buffer.

“The buffer and setback are separate and distinct requirements of (county code),” Allen said. “An explicit action to reduce one does not imply intent to reduce the other.”

While the 50-percent buffer reduction can be approved by planners without a formal variance hearing, the planners never explained how they could also eliminate the 15-foot building setback without a hearing.

Jeff Rowe, deputy director of the Department of Community Development, said the department’s procedures must be changed to make it clear when planners are approving a buffer reduction, a setback reduction, or both.

“We need to be more precise with our language when we’re describing what is taking place,” he said.

The application for the Chico Way home remains under review, Rowe said, and it isn’t clear how the hearing examiner’s concerns will be resolved.

Allen also found a mistake in determining the location of the stream buffer — another finding that could complicate the outcome. Because the stream is located in a ravine, the buffer should be measured from the top of the ravine, she said, not the middle of the stream, as the applicant did.

The planners had argued that a geotechnical report on slope stability at the site describes specific buffers that should supersede the stream buffers. Using that argument, it would not be necessary to measure from the top of the slope. But Allen found that buffers designed to protect property from geological hazards are entirely different from buffers designed to protect fish and wildlife habitat. Both kinds of buffers must be taken into account, she said.

Allen also found that a habitat management plan submitted by the applicant was deficient, because it failed to include a restoration plan. In some cases, such plans simply call for planting native vegetation, but a restoration plan is a prerequisite for buffer reduction.